consti part 8: freedom of expression –unprotected speech
Defamatory Speech
POLICARPIO vs. MANILA TIMES
FACTS:
• Plaintiff Policarpio seeks to recover damages
against the Manila Times Publishing Co. by
reason of the publication in the Saturday Mirror
of Aug 11, 1956, and in the Daily Mirror of Aug
13, 1956 of 2 articles or news items which are
claimed to be per se defamatory, libelous and
false.
• CFI dismissed the complaint on the ground that
the plaintiff had not proven that defendants had
acted maliciously in publishing the articles,
although portions thereof were inaccurate or
false.
• Background: Policarpio was executive secretary
of UNESCO Nat’l Commission. As such, she had
filed charges against Herminia Reyes, one of her
subordinates in the Commission, & caused the
latter to be separated from the service. Reyes, in
turn, filed counter-charges which were referred
for investigation. Pending completion, Reyes filed
a complaint against Policarpio for alleged
malversation of public funds & another
complaint for estafa thru falsification of public
documents. Meanwhile the following articles
were published:
Saturday Mirror (Aug 11, 1956):
“WOMAN OFFICIAL SUED
PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on Supplies,
Funds Use by Colleague”
Daily Mirror (Aug 13, 1956):
“PALACE OPENS INVESTIGATION OF RAPS
AGAINST POLICARPIO
Alba Probes Administrative Phase of Fraud
Charges Against Unesco Woman Official; Fiscal
Sets Prelim Quiz of Criminal Suit on Aug 22”
• The articles contain news on Reyes’ charges
against Policarpio for having malversed public
property and of having fraudulently sought
reimbursement of supposed official expenses. It
was said that Policarpio used several sheets of
govt stencils for her private and personal use.
The other charge refers to the supposed
reimbursements she had made for a trip to
Quezon and Pangasinan. Reyes’ complaint
alleged that Policarpio had asked for refund of
expenses for use of her car when she had
actually made the trip aboard an army plane.
Policarpio was said to be absent from the
Bayambang conference for which she also
sought a refund of expenses.
consti 2 all stars
ISSUE: WON defendant is guilty of having published
libelous/defamatory articles. YES
RATIO:
• The title of the Aug 11 article was given
prominence w/ a 6-column (about 11 inches)
banner headline of 1-inch types. Its sub-title –
‘PCAC raps Policarpio on fraud” – printed in bold
1 cm type is not true. Also, the statement in the
1st paragraph of the article, to the effect that
plaintiff “was charged w/ malversation & estafa
by the Pres’l Complaint & Action Commission”
(PCAC) is not true, the complaints for said
offenses having been filed by Reyes. Neither is it
true that said “criminal action was initiated as a
result of current administrative investigation.”
• PLAINTIFF maintains that the effect of these
false statements was to give the general
impression that said investigation by Col. Alba
had shown that plaintiff was guilty and that, as
a consequence, PCAC had filed the
corresponding complaints w/ the fiscal’s office.
She also said that the article did not mention
that fact that the number of stencils involved in
the charge was only 18 or 20; that the sum
allegedly misappropriated by her was only P54,
and that the falsification imputed to her was
said to have been committed by claiming that
certain expenses for which she had sought
reimbursement were incurred in trips during the
period from July 1 – Sept 30 1955, although the
trips actually were made from Jul 8-Aug 31,
1955. By omitting these details, plaintiff avers
that the Aug 11 article had the effect of
conveying the idea that the offenses imputed to
her were more serious than they really were.
• DEFENDANTS contend that though the
complaints were filed, not by the PCAC but by
Reyes, this inaccuracy is insignificant &
immaterial to the case for the fact is that said
complaints were filed. As regards the number of
sheets & the nature of the falsification charged,
they argue that these “details” do not affect the
truthfulness of the article as a whole. Besides,
defendants had no means of knowing such
“details.”
• SC: Prior to Aug 11, Col. Alba had already taken
the testimony of witnesses, hence, defendants
could have ascertained the “details” had they
wanted to. The number of stencil sheets used
was actually mentioned in the Aug 13 article.
• Moreover, the penalty for estafa/embezzlement
depends partly upon the amount of the damage
caused to the offended party. Hence, the amount
or value of the property embezzled is material to
said offense.
• It is obvious that the filing of criminal
complaints by another agency of the Govt, like
the PCAC, particularly after an investigation
conducted by the same, imparts the ideal that
the probability of guilt is greater than when the
complaints are filed by a private individual,
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consti part 8: freedom of expression –unprotected speech
specially when the latter is a former subordinate
of the alleged offender, who was responsible for
the dismissal of the complainant from her
employment.
• Newspapers must enjoy a certain degrees of
discretion in determining the manner in which a
given event should be presented to the public,
and the importance to be attached thereto, as a
news item, and that its presentation in a
sensational manner is not per se illegal.
Newspapers may publish news items relative to
judicial, legislative or other official proceedings,
which are not of confidential nature, because the
public is entitled to know the truth with respect
to such proceedings. But, to enjoy immunity, a
publication containing derogatory
information must be not only true, but, also,
fair, and it must be made in good faith and
without any comments or remarks.
• Art. 354, RPC provides:
“Every defamatory imputation is presumed to be
malicious even if it be true, if no good intention &
justifiable motive for making it is shown, except:
1. xxx
2. A fair and true report, made in good faith,
w/o any comments or remarks….”
• In the case at bar, aside from containing
information derogatory to the plaintiff, the Aug
11 article presented her in a worse predicament
than that in which she, in fact was. Said article
was not a fair and true report of the proceedings
therein alluded to. What is more, its sub-title
“PCAC raps Policarpio on fraud” is a comment or
remark, besides being false. Accordingly, the
defamatory imputations contained in said article
are “presumed to be malicious”
• In falsely stating that the complaints were filed
by PCAC, either defendants knew the truth or
they did not. If they did, then the publication
would actually be malicious. I f they did not, or
if they acted under a misapprehension of the
facts, they were guilty of negligence in making
said statement.
• We note that the Aug 13 article rectified a major
inaccuracy in the 1st article, by stating that
neither Col. Alba nor the PCAC had filed the
complaints. It likewise indicated the number of
stencil sheets involved. But, this rectification or
clarification does not wipe out the responsibility
arising from the publication of the Aug 11
article, although it should mitigate it.
HELD: Decision reversed. Defendants ordered to pay
plaintiff moral damages, atty’s fees plus cost.
LOPEZ vs. CA
(1970)
Ponente: Fernando J
consti 2 all stars
FACTS:
This Week Magazine of the Manila Chronicle published a
series of articles in January, 1956 about the Hoax of the
Year. It also erupted in the earlier part of that month.
The story goes that Fidel Cruz was a sanitary inspector
in the Babuyan Islands. He sent out a distress signal to
a US air force plane who relayed it to Manila. Another
US plane dropped emergency supplies together with a
two-way radio. Cruz told of killings committed since
Christmas, 1955 which terrorized the populace. The
Philippine army was sent out only to find Cruz who only
wanted transportation home to Manila. The army
branded it as a hoax.
The series of articles published the photo of Fidel Cruz.
However, it was not the sanitary inspectors photo that
was published but that of former Mayor Fidel G. Cruz of
Sta. Maria, Bulacan, businessman and contractor. As
soon as the error was noticed, a correction was
immediately published.
Fidel G. Cruz sued and the trial court awarded him
damages which was affirmed by the Court of Appeals.
ISSUE:
WON the Publishers were guilty of libel?
HELD:
Yes, though the standard is “actual malice”, in weekly
magazines there is little excuse for errors in data.
RATIONALE:
No liability would be incurred if the petitioners could
prove that their actions are embraced by press freedom.
Included therein is the widest latitude of choice as to
what items should see the light of day as long as they
are relevant to a matter of public interest, the insistence
on the requirement as to its truth yielding at times to
unavoidable inaccuracies attendant on newspapers and
other publications being subject to the tyranny of
deadlines. If there is no such showing, there is a quasi-
delict. Libel has both a criminal and civil aspect because
it induces breach of the peace by the defamed person
and it deprives him of his good reputation.
Libel was defined in the old libel law as “a malicious
defamation expressed either in writing, printing or by
signs or pictures or like… exposing [someone, dead or
alive] to public hatred, contempt or ridicule”. Newell
(Slander and Libel) states that libel is incurred when the
wrong person’s photograph was published with a
libelous article. Holmes points out that publishing a
portrait by mistake was no excuse. The publisher took
the risk in publishing a libelous article and he publishes
at his peril. Learned Hand states that when a photo
exposes a person to ridicule it is libelous. Cardozo states
that though words dissolve, writings persevere and
writings include any symbol as long as it is intelligible.
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consti part 8: freedom of expression –unprotected speech
Criticism, however, is justified in the interest of society
and the maintenance of good gov’t. Liberty to comment
on public affairs creates a full discussion and public
officers should not be too thin skinned that they can’t
take it. Newspapers have the legal right to have and
express opinions on legal questions. Debate on public
issues should be uninhibited, robust, wide-open, even
allowing vehement, caustic and sharp attacks. Criticism
turns to libel when “actual malice” is used – when a
statement was made with knowledge that it was false or
with reckless disregard that it was false or not (US SC,
NY Times vs Sullivan).
Paras as ponente in Quisumbing vs Lopez states that
newspapers should not be held to account for honest
mistakes or imperfection in the choice of words. However
this is not the case here. A weekly magazine is not
oppressed by the tyranny of deadlines as much as
dailies. There is no need to act in haste.
Retractions do not absolve one from pecuniary liability.
There is still responsibility arising from the publication
of the first article
DISPOSITION:
Libelous. Affirmed with lower costs because of retraction
OTHER OPINIONS:
Dizon J, dissent:
The facts do not bear out the conclusion that actual
malice was involved. Damages on the basis of tort are
untenable because the articles do not involve moral
turpitude. Whatever negligence there is in the case
should be considered as excusable.
NEW YORK TIMES vs. SULLIVAN
(1964)
FACTS:
 A full-page advertisement came out in the New
York Times on March 29, 1960 which talked
about the non-violent demonstrations being
staged by Southern Negro students in positive
affirmation of the right to live in human dignity
as guaranteed in the Constitution and the Bill of
Rights signed at the bottom by the “Committee
to Defend Martin Luther King and the Struggle
for Freedom in the South”
 L.B. Sullivan, the Commissioner of Public Affairs
of Montgomery, Alabama, whose duties include
supervision of the Police and Fire Department,
brought a civil libel suit against those those who
came out with the ad (4 Negro clergymen) and
the NY Times Company.
o Basis of the suit was statements in the
text of the ad saying in the 3rd par. that
consti 2 all stars
after students sang “My Country, ‘Tis of
Thee” on the State Capitol steps their
leaders were expelled from school,
policemen armed with shotguns and
tear gas ringed the State College
Campus, their dining hall was
padlocked to starve them when the
student body protested… and in the 6th
par. that again and again the Southern
violators have answered Dr. Kings
peaceful protest with violence and
intimidation going on to cite instances in
which They have done this (e.g. They
have assaulted his person).
o Neither of these statements mentions
the respondent by name but he argues
that the word “police” in the 3rd par
referred to him as Commissioner who
supervised the Police Department and
that the word “They” used in the 6th par
would be equated with the ones did the
other described acts and hence be read
as accusing the Montgomery police and
therefore him, of answering Dr. Kings
protests with violence and intimidation.
 Trial judge submitted the case to the jury under
instructions that the statements made were
“libelous per se”, which implies legal injury from
the bare fact of publication itself, and were not
privileged therefore the only things left to be
proven are whether petitioners published the ad
and whether the statements were made “of and
concerning” respondent.  trial judge found for
Sullivan, sustained by the Alabama SC
 A publication is “libelous per se” if the words
tend to injure a person in his reputation or to
“bring him in public contempt”  this standard
is met if the words are such as to “injure him in
his public office, impute misconduct to him in
his office, or want of official integrity.
o Once libel per se has been established
the defendant has no defense as to
stated facts unless he can persuade the
jury that they were true in their
particulars. Unless he can discharge the
burden of proving truth, general
damages are presumed and may be
awarded w/o proof of pecuniary injury.
ISSUE:
1. W/N the rule of liability (regarding libel per se)
regarding an action brought by a public official
against critics of his official conduct abridges the
freedom of speech and of the press that is
guaranteed by the 1st and 14th Amendments.
YES
a. W/N the advertisement forfeits the
protection guaranteed to free speech
and the press by the falsity of some of
3
consti part 8: freedom of expression –unprotected speech
its factual statements and by its alleged
defamation of respondent. NO
 “The maintenance of the opportunity for
free political discussion to the end that gov’t
may be responsive to the will of the people
and that changes may be obtained by lawful
means, an opportunity essential to the
security of the Republic, is a fundamental
principle of our constitutional system.”
Factual error of statement:
Authoritative interpretations of the First Amendment
guarantees have refused to recognize an exception for
any test of truth especially one that puts the burden of
proving truth on the speaker.
 Cases which impose liability for erroneous
reports of the political conduct of officials reflect
the obsolete doctrine that the governed must not
criticize their governors. The interest of the
public outweighs the interest of any other
individual. The protection of the public requires
not merely discussion, but information. Errors of
fact… are inevitable. Whatever is added to the
field of libel is taken from the field of free debate.
 A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertions--
and to do so on pain of libel judgments virtually
unlimited in amount--leads to a comparable
'self-censorship.' Allowance of the defense of
truth, with the burden of proving it on the
defendant, does not mean that only false speech
will be deterred.
o Under such a rule, would-be critics of
official conduct may be deterred from
voicing their criticism, even though it is
believed to be true and even though it is
in fact true, because of doubt whether it
can be proved in court or fear of the
expense of having to do so. They tend to
make only statements which 'steer far
wider of the unlawful zone. The rule
thus dampens the vigor and limits the
variety of public debate. It is
inconsistent with the First and
Fourteenth Amendments.
Defamatory character:
Criticism of their official conduct does not lose its
constitutional protection merely because it is effective
criticism and hence diminishes their official reputations.
 If neither factual error nor defamatory
content suffices to remove the constitutional
shield from criticism of official conduct, the
combination of the two elements is no less
inadequate.
When an article is considered privileged:
“Where an article is published and circulated among
voters for the sole purpose of giving what the defendant
consti 2 all stars
believes to be truthful information concerning a
candidate for public office and for the purpose of
enabling such voters to cast their ballot more
intelligently, and the whole thing is done in good faith
and without malice, the article is privileged, although the
principal matters contained in the article may be untrue
in fact and derogatory to the character of the plaintiff;
and in such a case the burden is on the plaintiff to show
actual malice in the publication of the article.”
 Privilege for criticism of public official is
appropriately analogues to the protection
accorded a public official when he is sued for
libel by a private citizen. Actual malice must be
proved.
o Proof of actual malice should be
presented
In cases where that line must be drawn, the rule is
that we examine for ourselves the statements in issue
and the circumstances under which they were made to
see whether they are of a character which the principles
of the First Amendment, as adopted by the Due Process
Clause of the Fourteenth Amendment, protect. We must
make an independent examination of the whole record,
so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free
expression.
 Proof showing actual malice not sufficiently
shown to support judgment. On the part of the
NY Times, statement does not indicate malice at
the time of publication and even if the ad was
not substantially correct the opinion presented
therein was a reasonable one and there is no
evidence to impeach the good faith of the Times
in publishing it.
Reference to respondent in the ads:
Evidence is incapable of supporting conclusion that
statements were made “of and concerning” respondent.
No reference to respondent was made either by name or
official position. None of the statements made suggested
any basis for the belief that respondent was himself
attached beyond the bare fact that he was in overall
charge of the Police Department.
With regard to damages:
General and punitive damages must be
differentiated and since the judge did not instruct the
jury to differentiate it would then be impossible to know
which one they awarded and if adequate proof was
presented warranting such an award of damages.
Because of this uncertainty in addition to the those
discussed above, the judgment must be reversed and
remanded.
ROSENBLOOM vs. METROMEDIA
(Brennan)
FACTS
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consti part 8: freedom of expression –unprotected speech
1. 1n 1963, Rosenbloom was a distributor of
nudist magazines. The Special Investigations
Squad of the Philadelphia Police Department,
headed by Cpt. Ferguson, purchased magazines
from more than 20 newsstands. Based on the
Captain’s own determination that the magazines
were obscene, they arrested most of the
newsstand operators.
2. Rosenbloom was about to deliver his magazines
while the arrests were taking place. As a result,
he was also arrested.
3. 3 days later police obtained a warrant to search
his home and his rented barn which was used
as a warehouse where further seizures took
place. He paid bail for the 1st arrest but was
again detained.
4. Cpt. Ferguson telephoned the respondent’s radio
station WIP, a local radio station, a wire service
and a local newspaper to inform them of the raid
and his arrest. In WIP’s broadcast they used the
words “allegedly” and “reportedly” obscene more
than five times.
5. Rosenbloom brought action in the Federal
District Court for an injunctive relief to prohibit
the police and further publicity in interfering
with his business.
6. There was a second broadcast which did not
mention the petitioner’s name about the case
described as: as action by “smut distributors” or
“girlie book peddlers” seeking the defendants to
“lay off the smut literature racket”.
7. Rosenbloom went personally to the radio station
(through a lobby telephone talk with a part-time
newscaster) and said that his magazines were
found to be completely legal and legit by the US
SC. The newscaster said it was the district
attorney who said it was obscene, Rosenbloom
countered saying that he had a public statement
of the district attorney declaring the magazines
legal and alleged that at that moment, the
telephone conversation was terminated.
8. In 1964, he was acquitted by a jury saying that
the magazines were not obscene as a matter of
law. Following the acquittal, he filed for damages
under Pennsylvania’s libel laws saying that the
characterization of the books seized as obscene
was proved false by the acquittal. WIP’s defenses
were truth (since Penn. Law recognizes truth as
a complete defense) where their source was Cpt.
Ferguson, and privilege (where a conditional
privilege is recognized for news media to report
judicial, administrative, or legislative
proceedings if the account is fair and accurate
and not published solely for the purpose of
causing harm <but this may be defeated by
showing want of reasonable care and diligence to
ascertain the truth, where burden of proof is
upon defendant>)
9. Court said that 4 findings were necessary to
return a verdict for pet. 1) that one or more of
the broadcasts were defamatory 2) a reasonable
listener would conclude that the defamatory
statements referred to pet 3) WIP either intended
consti 2 all stars
to injure the plaintiff personally or there is
unreasonable care 4) the reporting was false.
Judgment awarded him with $25,000 in general
damages and $250,000 in punitive damages.
10. CA reversed saying that the broadcasts
concerned matters of public interest and they
involved “hot news” published under pressure.
Even though he is not a public figure, the
standards should still be applied to implement
the First Amendment.
ISSUE:
Whether because he is not a “public official” or a “public
figure” but a private individual that he still needs to
prove the falsehoods resulting from a failure to exercise
reasonable care, or that it was broadcast with knowledge
of its falsity, or with reckless disregard if whether they
were false or not (ang gulo no? hehe)
HELD: Yeah. CA affirmed. Evidence was insufficient to
support a verdict.
RATIO:
If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a
private individual is involved, or because in some sense
the individual did not "voluntarily" choose to become
involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and
the content, effect, and significance of the conduct, not
the participant's prior anonymity or notoriety. The
present case illustrates the point. The community has a
vital interest in the proper enforcement of its criminal
laws, particularly in an area such as obscenity where a
number of highly important values are potentially in
conflict: the public has an interest both in seeing that
the criminal law is adequately enforced and in assuring
that the law is not used unconstitutionally to suppress
free expression. Whether the person involved is a famous
large-scale magazine distributor or a "private"
businessman running a corner newsstand has no
relevance in ascertaining whether the public has an
interest in the issue. We honor the commitment to
robust debate on public issues, which is embodied in the
First Amendment, by extending constitutional protection
to all discussion and communication involving matters
of public or general concern, without regard to whether
the persons involved are famous or anonymous.
Rosenbloom’s arguments.
First, he argues that the private individual, unlike the
public figure, does not have access to the media to
counter the defamatory material and that the private
individual, unlike the public figure, has not assumed the
risk of defamation by thrusting himself into the public
arena.
COURT SAID:
Analysis of the particular factors involved, however,
convinces us that petitioner's arguments cannot be
reconciled with the purposes of the First Amendment,
with our cases, and with the traditional doctrines of libel
law itself. Drawing a distinction between "public" and
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consti part 8: freedom of expression –unprotected speech
"private" figures makes no sense in terms of the First
Amendment guarantees.The New York Times standard
was applied to libel of a public official or public figure to
give effect to the Amendment's function to encourage
ventilation of public issues, not because the public
official has any less interest in protecting his reputation
than an individual in private life. While the argument
that public figures need less protection because they can
command media attention to counter criticism may be
true for some very prominent people, even then it is the
rare case where the denial overtakes the original charge.
Denials, retractions, and corrections are not "hot" news,
and rarely receive the prominence of the original story.
When the public official or public figure is a minor
functionary, or has left the position that put him in the
public eye, the argument loses all of its force. In the vast
majority of libels involving public officials or public
figures, the ability to respond through the media will
depend on the same complex factor on which the ability
of a private individual depends: the unpredictable event
of the media's continuing interest in the story.
R 2nd argument:
Second, petitioner focuses on the important values
served by the law of defamation in preventing and
redressing attacks upon reputation.
COURT ELUCIDATING (naks):
General references to the values protected by the law of
libel conceal important distinctions. Traditional
arguments suggest that libel law protects two separate
interests of the individual: first, his desire to preserve a
certain privacy around his personality from unwarranted
intrusion, and, second, a desire to preserve his public
good name and reputation. The individual's interest in
privacy--in preventing unwarranted intrusion upon the
private aspects of his life--is not involved in this case ,
the idea that certain "public" figures have voluntarily
exposed their entire lives to public inspection, while
private individuals have kept theirs carefully shrouded
from public view is, at best, a legal fiction.. In the
present case, however, petitioner's business reputation
is involved, and thus the relevant interests protected by
state libel law are petitioner's public reputation and good
name.
These are important interests. Consonant with the libel
laws of most of the States, however, Pennsylvania's libel
law subordinates these interests of the individual in a
number of circumstances. Thus, high government
officials are immune from liability--absolutely
privileged--even if they publish defamatory material from
an improper motive, with actual malice, and with
knowledge of its falsity. This absolute privilege attaches
to judges, attorneys at law in connection with a judicial
proceeding, parties and witnesses to judicial
proceedings, Congressmen and state legislators, and
high national and state executive officials. Moreover, a
conditional privilege allows newspapers to report the
false defamatory material originally published under the
absolute privileges listed above, if done accurately.
consti 2 all stars
Even without the presence of a specific constitutional
command, therefore, Pennsylvania libel law recognizes
that society's interest in protecting individual reputation
often yields to other important social goals. In this case,
the vital needs of freedom of the press and freedom of
speech persuade us that allowing private citizens to
obtain damage judgments on the basis of a jury
determination that a publisher probably failed to use
reasonable care would not provide adequate "breathing
space" for these great freedoms. Fear of guessing wrong
must inevitably cause self-censorship and thus create
the danger that the legitimate utterance will be deterred.
This Court has recognized this imperative: "To insure the
ascertainment and publication of the truth about public
affairs, it is essential that the First Amendment protect
some erroneous publications as well as true ones." We
thus hold that a libel action, as here, by a private
individual against a licensed radio station for a
defamatory falsehood in a newscast relating to his
involvement in an event of public or general concern may
be sustained only upon clear and convincing proof that
the defamatory falsehood was published with knowledge
that it was false or with reckless disregard of whether it
was false or not. Calculated falsehood, of course, falls
outside "the fruitful exercise of the right of free speech.
Finding of SC regarding the “alleged” and
“reportedly” issue:
Our independent analysis of the record leads us to agree
with the Court of Appeals that none of the proofs,
considered either singly or cumulatively, satisfies the
constitutional standard with the convincing clarity
necessary to raise a jury question whether the
defamatory falsehoods were broadcast with knowledge
that they were false or with reckless disregard of whether
they were false or not. That portion of petitioner's case
was based upon the omission from the first two
broadcasts at 6 and 6:30 p. m. on October 4 of the word
"alleged" preceding a characterization of the magazines
distributed by petitioner. But that omission was
corrected with the 8 p. m. broadcast and was not
repeated in the five broadcasts that followed.
Regarding the “smut literature” and “girlie book
peddler”
The transcript of the testimony shows that plaintiff's own
attorney, when questioning defendant's representative
concerning the allegedly defamatory portion of the last
broadcast, said that he was not questioning its
'accuracy'. Furthermore, his examination of the same
witness brought out that defendant's representative
confirmed the story with the judge involved before the
broadcast was made. We think that the episode
described failed to provide evidence of actual malice with
the requisite convincing clarity to create a jury issue
under federal standards
Petitioner argues finally that WIP's failure to
communicate with him to learn his side of the case and
to obtain a copy of the magazine for examination,
sufficed to support a verdict under the New York Times
standard. But our "cases are clear that reckless conduct
is not measured by whether a reasonably prudent man
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consti part 8: freedom of expression –unprotected speech
would have published, or would have investigated before
publishing. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication."
Respondent here relied on information supplied by police
officials. Following petitioner's complaint about the
accuracy of the broadcasts, WIP checked its last report
with the judge who presided in the case. While we may
assume that the District Court correctly held to be
defamatory respondent's characterizations of petitioner's
business as "the smut literature racket," and of those
engaged in it as "girlie-book peddlers," there is no
evidence in the record to support a conclusion that
respondent "in fact entertained serious doubts as to the
truth" of its reports.
AYER PRODUCTION vs. JUDGE CAPULONG
FACTS:
Petitioner Hal McElroy is an Australian filmmaker
planning to reenact the “historic peaceful struggle of the
Filipinos at EDSA”, in a film. The motion picture is
entitled “The Four Day Revolution”. This would be done
through the eyes of 4 fictional characters situated in the
Philippines during the days surrounding the revolution.
The project was also to be done with the help of
Australian playwright David Williamson and American
historian Al McCoy.
When discussed with local movie producer, lope V.
Juban, Ayer Productions was told to get the consent of
certain government agencies, as well as that of Gen.
Ramos and Sen. Enrile. All the proper consent was
given, except by Enrile who did not want his name, or
that of his family, to be used in the film. Ayer
Productions decided to go on with the film, but delete the
name of Sen. Enrile.
During the filming, Sen. Enrile filed a complaint in Court
for a TRO to enjoin petitioner Ayer from filming, saying
that the making of the movie without respondent’s
consent as a violation of his right to privacy. A writ of
preliminary injunction was issued upon Ayer as a result.
Ayer then filed with the SC through a petition of
certiorari. The court granted a TRO on the injunction,
allowing Ayer to film those parts of the movie not related
to Sen. Enrile.
Respondent invokes the right to privacy. Petitioner
invokes freedom of expression.
ISSUE:
WON the media’s freedom of expression may encroach
on the right to privacy of a public figure.
HELD: Yes it may
RATIO:
The case is basically one of superiority of rights; the
filmmaker’s freedom of expression vs. Enrile’s right to
consti 2 all stars
privacy. In the case at bar, the Court decided that
freedom of expression must prevail.
(Some important things to note are that freedom of
expression extends to local and foreign filmmakers in the
country. It also extends to public and private film
companies.)
Now the court says that the right to privacy is not
absolute. Allowable is a limited intrusion where the
person is a public figure and the information is of public
interest. In this case, the subject matter is of public
interest as it was a historical event, and Sen. Enrile
played a big part in this event, thus making his
character a public figure. Therefore, a limited intrusion
is allowable. Furthermore, the portrayal of Sen. Enrile is
not the main focus of the film, but is necessary, again,
due to the large part he played in it. “Private respondent
is a “public figure” precisely because, inter alia, of his
participation as a principal actor in the culminating
events of the change of government in February 1986”.
(This was contrasted to an earlier ruling regarding the
life of Moises Padilla. But in that case, Moises Padilla
was the main focus of the film. Enrile is not so in this
one.)
The Court also talks about the “privilege of enlightening
the public”, which is the privilege of the press. The Court
said that this privilege is also extended to film.
Brought up were 2 doctrines. The “clear and present
danger” doctrine and the “balancing of interest” doctrine.
These are seen as limitations upon the freedom of
expression. However, use of either would not matter as
the result would be the same.
On the “balancing of interest” rule: The principle requires a
court to take conscious and detailed consideration of the
interplay of interests observable in a given situation or
type of situation.
SOLIVEN vs. MAKASIAR
BELTRAN vs. MAKASIAR
Petition for Certiorari and Prohibition to review the decision
of the RTC
FACTS:
Then President of the Philippines (Aquino) filed
Informations for libel against the petitioners. Manila
RTC (Makasiar, J) issued a warrant of arrest for
petitioners.
ISSUES: Whether or not the RTC erred in issuing the
warrants of arrest.
RATIO-HELD: DISMISSED.
7
consti part 8: freedom of expression –unprotected speech
Ground 1: Petitioners were denied due process when the
informations for libel were filed against them although
the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and by the
President.
Court: Moot and Academic. On March 30, 1988, the
Secretary of Justice denied petitioners’ motion for
reconsideration and upheld the resolution of the USec of
Justice sustaining the City Fiscal’s finding of a prima
facie case against petitioners.
Ground 2: Beltran’s constitutional rights were violated
when respondent RTC judge issued a warrant for his
arrest without personally examining the complainant
and the witnesses to determine probable cause.
Court: (Please see Art 3, sec 2 of the Consti) In satisfying
himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witness.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and then issue a warrant of
arrest, or (2) if he finds no probable cause, he may
disregard the fiscal’s report and require the submission
of supporting affidavit of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause.
Ground 3: The President’s immunity from suits imposes
a correlative disability to file a suit. If criminal
proceedings ensue by virtue of the President’s filing of
her complaint-affidavit, she may subsequently have to be
a witness for the prosecution, bringing her under the
trial court’s jurisdiction. This would be in an indirect
way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing
herself to possible contempt of court or perjury. (Beltran)
May the privilege of immunity be waived?
There is nothing in our laws that would prevent the
President from waiving the privilege.
The privilege of immunity from suit, pertains to the
President by virtue of the office and may be invoked only
by the holder of the office; not by any other person in the
President’s behalf. An accused in a criminal case in
which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case
from proceeding against such accused.
What is the rationale for the privilege of immunity from
suit?
The rationale for the grant to the President of the
privilege of immunity from suit is to assure the exercise
of Presidential duties and functions free from any
hindrance or distraction, considering that being the
Chief Executive of the Government is a job that demands
undivided attention.
MVRS vs. ISLAMIC DA’WAH COUNCIL
(January 2003, Bellosillo)
consti 2 all stars
FACTS:
1. ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC., a local federation of more
than seventy (70) Muslim religious
organizations, and some individual Muslims field
in the RTC of Manila a complaint for damages in
their own behalf and as a class suit in behalf of
the Muslim members nationwide against MVRS
PUBLICATIONS, INC and some its staff arising
from an article published in the 1 August 1992
issue of Bulgar, a daily tabloid.
2. The article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng
hayop sa Mindanao ay hindi kinakain ng mga
Muslim?
Para sa kanila ang mga ito ay isang
sagradong bagay. Hindi nila ito kailangang
kainin kahit na sila pa ay magutom at mawalan
ng ulam sa tuwing sila ay kakain. Ginagawa
nila itong Diyos at sinasamba pa nila ito sa
tuwing araw ng kanilang pangingilin lalung-lalo
na sa araw na tinatawag nilang ‘Ramadan’."
3. The complaint:
a) The statement was insulting and
damaging to the Muslims;
b) that these words alluding to the pig as
the God of the Muslims was not only
published out of sheer ignorance but
with intent to hurt the feelings, cast
insult and disparage the Muslims and
Islam, as a religion in this country, in
violation of law, public policy, good
morals and human relations;
c) that on account of these libelous words
Bulgar insulted not only the Muslims in
the Philippines but the entire Muslim
world, especially every Muslim
individual in non-Muslim countries.
4. MVRS PUBLICATIONS, INC. and BINEGAS, JR.,
in their defense, contended that the article did
not mention respondents as the object of the
article and therefore were not entitled to
damages; and, that the article was merely an
expression of belief or opinion and was
published without malice nor intention to cause
damage, prejudice or injury to Muslims.
5. The RTC dismissed the complaint holding that
Islamic Da’wah et al. failed to establish their
cause of action since the persons allegedly
defamed by the article were not specifically
identified. The alleged libelous article refers to the
larger collectivity of Muslims for which the readers
of the libel could not readily identify the
personalities of the persons defamed. Hence, it is
8
consti part 8: freedom of expression –unprotected speech
difficult for an individual Muslim member to prove
that the defamatory remarks apply to him.
6. The Court of Appeals reversed the decision of
the RTC. It opined that it was "clear from the
disputed article that the defamation was
directed to all adherents of the Islamic faith.
This libelous imputation undeniably applied to
the plaintiff-appellants who are Muslims sharing 4.
the same religious beliefs." It added that the
suit for damages was a "class suit" and that
ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC.'s religious status as a
Muslim umbrella organization gave it the
requisite personality to sue and protect the
interests of all Muslims.
7. MVRS brought the issue to the SC.
IMPT.ISSUE:
5.
WON there was an existence of the elements of libel
in the Bulgar article.
DECISION:
The article was not libelous. Petition GRANTED. The
assailed Decision of the Court of Appeals was
REVERSED and SET ASIDE and the decision of the RTC
was reinstated.
RATIO:
1. There was no fairly identifiable person 6.
who was allegedly injured by the Bulgar
article. An individual Muslim has a
reputation that is personal, separate and
distinct in the community. Each has a
varying interest and a divergent political
and religious view. There is no injury to
the reputation of the individual Muslims
who constitute this community that can
give rise to an action for group libel.
Each reputation is personal in character
7.
to every person. Together, the Muslims
do not have a single common reputation
that will give them a common or general
interest in the subject matter of the
controversy.
2. Defamation, which includes libel (in
general, written) and slander (in general,
oral), means the offense of injuring a
person's character, fame or reputation
through false and malicious statements.
It is that which tends to injure reputation
or to diminish the esteem, respect, good
will or confidence in the plaintiff or to
excite derogatory feelings or opinions
about the plaintiff.
3. Defamation is an invasion of a relational
interest since it involves the opinion
which others in the community may
have, or tend to have, of the plaintiff.
Words which are merely insulting are not
consti 2 all stars
actionable as libel or slander per se, and
mere words of general abuse however
opprobrious, ill-natured, or vexatious,
whether written or spoken, do not
constitute a basis for an action for
defamation in the absence of an
allegation for special damages.
Declarations made about a large class of
people cannot be interpreted to advert to
an identified or identifiable individual.
Absent circumstances specifically
pointing or alluding to a particular
member of a class, no member of such
class has a right of action without at all
impairing the equally demanding right of
free speech and expression, as well as of
the press, under the Bill of Rights.
The SC used the reasoning in Newsweek v
IAC: where the defamation is alleged to
have been directed at a group or class, it is
essential that the statement must be so
sweeping or all-embracing as to apply to
every individual in that group or class, or
sufficiently specific so that each individual
in the class or group can prove that the
defamatory statement specifically pointed
to him, so that he can bring the action
separately.
The SC cited some US cases wherein the
rule on libel has been restrictive. It was
held that there could be no libel against
an extensive community in common law.
With regard to the largest sectors in
society, including religious groups, it may
be generally concluded that no criminal
action at the behest of the state, or civil
action on behalf of the individual, will lie.
"Emotional distress" tort action has no
application in this case because no
particular individual was identified in the
Bulgar article. "Emotional distress" means
any highly unpleasant mental reaction
such as extreme grief, shame,
humiliation, embarrassment, anger,
disappointment, worry, nausea, mental
suffering and anguish, shock, fright,
horror, and chagrin. This kind of tort
action is personal in nature, i.e., it is a
civil action filed by an individual to
assuage the injuries to his emotional
tranquility due to personal attacks on his
character. Under the Second Restatement
of the Law, to recover for the intentional
infliction of emotional distress the
plaintiff must show that:
(a) The conduct of the defendant
was intentional or in reckless
disregard of the plaintiff;
(b) The conduct was extreme
9
consti part 8: freedom of expression –unprotected speech
and outrageous;
(c) There was a causal
connection between
defendant's conduct and the
plaintiff's mental distress;
(d) The plaintiff's mental
distress was extreme and
severe.
8. "Extreme and outrageous conduct" means
conduct that is so outrageous in
character, and so extreme in degree, as to
go beyond all possible bounds of decency.
The actions must have been so terrifying
as naturally to humiliate, embarrass or
frighten the plaintiff.
9. Any party seeking recovery for mental
anguish must prove more than mere
worry, anxiety, vexation, embarrassment,
or anger. Liability does not arise from
mere insults, indignities, threats,
annoyances, petty expressions, or other
trivialities. Intentional tort causing
emotional distress must necessarily give
way to the fundamental right to free
speech.
10. The doctrines in Chaplinsky and
Beauharnais had largely been superseded
by subsequent First Amendment
doctrines. Back in simpler times in the
history of free expression the Supreme
Court appeared to espouse a theory,
known as the Two-Class Theory, that
treated certain types of expression as
taboo forms of speech, beneath the
dignity of the First Amendment such as
lewd and obscene, the profane, the
libelous, and the insulting or “fighting”
words – those which by their very
utterance inflict injury or tend to incite
an immediate breach of the peace. Today,
however, the theory is no longer viable;
modern First Amendment principles have
passed it by.
11. American courts no longer accept the
view that speech may be proscribed
merely because it is "lewd," "profane,"
"insulting" or otherwise vulgar or
offensive.(Cohen v California) Similarly,
libelous speech is no longer outside
the First Amendment protection. Only
one small piece of the Two-Class
Theory in Chaplinsky survives - U.S.
courts continue to treat "obscene"
speech as not within the protection of
the First Amendment at all. With
respect to the "fighting words"
doctrine, while it remains alive it was
modified by the current rigorous clear
and present danger test.
consti 2 all stars
12. Respondents' lack of cause of action
cannot be cured by the filing of a class
suit. An element of a class suit is the
the adequacy of representation. In
determining the question of fair and
adequate representation of members of a
class, the court must consider:
(a) whether the interest of the
named party is coextensive
with the interest of the other
members of the class;
(b) the proportion of those made
parties as it so bears to the
total membership of the class;
and,
(c) any other factor bearing on
the ability of the named party
to speak for the rest of the
class.
Islamic Da’wah Council of the Philippines, Inc.,
seeks in effect to assert the interests not only of
the Muslims in the Philippines but of the whole
Muslim world as well. Private respondents
obviously lack the sufficiency of numbers to
represent such a global group; neither have they
been able to demonstrate the identity of their
interests with those they seek to represent.
“Fighting words”, Offensive Words
CHAPLINSKY vs. NEW HAMPSHIRE
(1942)
Ponente: J. Murphy
FACTS:
In 1940 Walter Chaplinsky, a Jehovah's Witness,
was distributing literature on the streets of
Rochester, New Hampshire, when he created quite a
stir by loudly telling everyone he encountered that
organized religions are “a racket” and by specifically
condemning several major ones by name in great
detail. Members of the local citizenry complained to
the City Marshal, Bowering, that Chaplinsky was
denouncing all religion as a 'racket'. Bowering told
them that Chaplinsky was lawfully engaged, and
then warned Chaplinsky that the crowd was getting
restless. Some time later a disturbance occurred and
the traffic officer on duty at the busy intersection
started with Chaplinsky for the police station, but
did not inform him that he was under arrest or that
he was going to be arrested. On the way they
encountered Marshal Bowering who had been
advised that a riot was under way and was therefore
hurrying to the scene. Bowering repeated his earlier
warning to Chaplinsky who then addressed to
Bowering the words set forth in the complaint.
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consti part 8: freedom of expression –unprotected speech
The complaint charged that appellant “with force and
arms, in a certain public place in said city of Rochester,
on the public sidewalk on the easterly side of Wakefield
Street, near unto the entrance of the City Hall, did
unlawfully repeat, the words following, addressed to the
complainant, 'You are a God damned racketeer' and 'a
damned Fascist and the whole government of Rochester
are Fascists or agents of Fascists”. He was arrested an
eventually convicted under a state law (Chapter 378,
Section 2, of the Public Laws of New Hampshire) that
made it an offense to speak “any offensive, derisive or
annoying word to any other person who is lawfully in
any street or other public place, nor call him by any
offensive or derisive name, nor make any noise or
exclamation in his presence and hearing with intent to
deride, offend or annoy him, or to prevent him from
pursuing his lawful business or occupation.”
Chaplinsky was found guilty by the lower court for
violating the said statute. Whereupon the appellant
raised the questions that the statute was invalid under
the Fourteenth Amendment of the Constitution of the
United States in that it placed an unreasonable restraint
on freedom of speech, freedom of the press, and freedom
of worship, and because it was vague and indefinite.
ISSUE/HELD:
W/O Not the New Hampshire statute is a violation of the
freedom of speech? NO
RATIO:
Under the Fourteenth Amendment, it is well understood
that the right of free speech is not absolute at all times
and under all circumstances. There are certain well-
defined and narrowly limited classes of speech, the
prevention and punishment of which has never been
thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous,
and the insulting or 'fighting' words-those which by their
very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed
that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as
a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality.
The word 'offensive' is not to be defined in terms of what
a particular addressee thinks. ... The test is what men of
common intelligence would understand would be words
likely to cause an average addressee to fight. Argument
is unnecessary to demonstrate that the appellations
'damn racketeer' and 'damn Fascist' are epithets likely to
provoke the average person to retaliation, and thereby
cause a breach of the peace. The Court held that the
limited scope of the statute does not contravene the
constitutional right of free expression nor does it
contravene the constitutional right of free expression. It
is a statute narrowly drawn and limited to define and
punish specific conduct lying within the domain of state
power.
consti 2 all stars
COHEN vs. CALIFORNIA
(June 17, 1971)
Ponente: J. Harlan
FACTS:
• Appelant Paul Robert Cohen was convicted in the CA
of Cal. for violating part of Cal. Penal Code 415,
which prohibits “maliciously and willfully disturbing
the peace or quiet of any neighborhood or person…
by offensive conduct,” for wearing a jacket bearing
the words “FUCK THE DRAFT” in a corridor of the
LA Courthouse. The defendant testified that he wore
the jacket knowing that the words were on the jacket
as a means of informing the public of the depth of
his feelings against the Vietnam War and the draft.
He did not engage in, nor threaten to engage in, nor
did anyone, as the result of his conduct, in fact
commit or threaten to commit, any act of violence.
• In affirming the conviction, the CA held that
offensive conduct means “behavior which has a
tendency to provoke others to acts of violence or to
in turn disturb the peace” and that the State has
proved this because “it was certainly reasonably
foreseeable that such conduct might cause others to
rise up to commit a violent act against the person of
the defendant or attempt to forceably remove his
jacket.”
ISSUE  HELD:
1. WON the conviction should be sustained  NO
2. WON Cal. can excise, as “offensive conduct,” one
particular scurrilous epithet from the public
discourse (upon a theory that its use is inherently
likely to cause violent reaction or upon a more
general assertion that States may properly remove
this offensive word from the public vocabulary) 
HELL, NO!!!
RATIO:
1.
The only “conduct” which the State sought to punish is
the fact of communication. Thus, we deal here with a
conviction resting solely upon “speech,” not upon any
separately identifiable conduct which allegedly was
intended by Cohen to be perceived by others as
expressive of particular views by which, on its face, does
not necessarily convey any message and hence arguably
could be regulated without effectively repressing Cohen’s
ability to express himself. So long as there is no showing
of intent to incite disobedience to or disruption of the
draft, Cohen could not, consistently with the 1st and 14th
Amendments, be punished for asserting the evident
position on the inutility or immorality of the draft his
jacket reflected.
11
consti part 8: freedom of expression –unprotected speech

This Court has held that States are free to ban the element of the overall message sought to be
simple use of so-called fighting words, those personally communicated.
abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, Lastly, we cannot indulge the facile assumption that one
inherently likely to provoke violent reaction. While the 4- can forbid particular words without also running a
letter word displayed by Cohen in relation to the draft is substantial risk of suppressing ideas in the process.
not uncommonly employed in a personally provocative Indeed, gov’t might soon seize upon the censorship of
fashion; in this instance, it was clearly not “directed to particular words as a convenient guise for banning the
the person of the hearer.” No individual actually or likely expression or unpopular views.
to be present could reasonably have regarded those
words on appellant’s jacket as a direct personal insult. In sum, absent a more particularized and compelling
There is no showing that anyone who saw Cohen was in reason for its action, the State may not, consistently
fact violently aroused or that appellant intended such with the 1st and 14th Amendments, make the simple
result. public display of this single 4-letter expletive a
criminal offense.
Moreover, the mere presumed presence of unwitting
listeners or viewers does not serve automatically to
justify curtailing all speech capable of giving offense. It
has been consistently stressed that “we are often
‘captives’ outside the sanctuary of the home and subject
Obscenity
to objectionable speech.” The ability of gov’t, consonant
ROTH vs. US
with the Consti, to shut off discourse solely to protect
others from hearing it, is dependent upon a showing that
(6/24/57)
substantial privacy interests are being invaded in an
Brennan, J.
essentially intolerable manner.
FACTS:
2.
Roth (New York) is in the business of publishing &
The rationale of the Cal. court is untenable. At most it
selling books, photographs & magazines. He used
reflects an “undifferentiated fear or apprehension of
circulars which he mailed in order to advertise. He was
disturbance which is not enough to overcome the right
convicted on the basis of a federal obscenity statute for
to freedom of expression,” (Tinker v Des Moines). The
mailing obscene circulars & advertisements. Alberts (Los
constitutional right of free expression is powerful
Angeles) operates a mail-order business. He was charged
medicine in a society as diverse and populous as ours. It
for violation of a California Penal Statute, for "lewdly
is designed and intended to remove governmental
keeping for sale obscene & indecent books".
restraints from the arena of public discussion, putting
the decision as to what views shall be voiced largely into
Petitioners: obscenity statutes offend the constitutional
the hands of each of us, in the hope that use of such
guaranties because they punish incitation to impure
freedom will ultimately produce amore capable citizenry
sexual thoughts, not shown to be related to any overt
and more perfect polity and in the belief that no other
antisocial conduct which is or may be incited in the
approach would comport with the premise of individual
persons stimulated to such thoughts.
dignity and choice upon which our political system rests.
2.the constitutional guaranties are violated because
convictions may be had without proof either that
The principle contended for by the State seems
obscene material will perceptibly create a clear and
inherently boundless. How is one to distinguish this
present danger of antisocial conduct, or will probably
from any other offensive word? Surely the State has no
induce its recipients to such conduct.
right to cleanse public debate to the point where it is
grammatically palatable to the most squeamish among
ISSUES:
us. Yet, no readily ascertainable general principle exists
1. In Roth-w/n the federal obscenity statute is in
for stopping short of that result if the judgment below
violation of the 1st Amendment;
was affirmed. For, while the particular 4-letter word
w/n the power to punish speech and press offensive to
being litigated hers is perhaps more distasteful than
decency and morality is in the States alone, so that the
most others of its genre, it is nevertheless often true
federal obscenity statute violates the Ninth and Tenth
that one man’s vulgarity is another’s lyric.
Amendments (raised in Roth
Also, we cannot overlook the fact that much linguistic
2. In Alberts- w/n the obscenity provisions fo the Cal
expression serves a dual communication function: it
Penal Code invade freedom of speech & press as they
conveys not only ideas capable of relatively precise,
may be incorporated with the liberty protected from state
detached explication, but otherwise inexpressible
action by the 14th Amend;
emotions as well. In fact, words are often chosen as
w/n Congress, by enacting the federal obscenity statute,
much for their emotive as well as their cognitive force.
under the power delegated by Art. I, 8, cl. 7, to establish
We cannot sanction the view that the Consti, while
post offices and post roads, pre-empted the regulation of
solicitous of the cognitive content of individual speech,
the subject matter
has little or no regard for that emotive function which,
3. w/n these statutes violate due process for vagueness
practically speaking, may often be the more important

consti 2 all stars 12

consti part 8: freedom of expression –unprotected speech
HELD: Obscenity is not an utterance that is within the
defintion of protected speech & press.
RATIO:
Numerous opiniosn of the court have held that obscenity
is not covered by the guarantee on the freedom of speech
& press. Ex parte Jackson; United States v. Chase; Near
v. Minnesota. Though this freedom may be in the
consitution, it is not absolute. As early as 1712,
Massachusetts made it criminal to publish "any filthy,
obscene, or profane song, pamphlet, libel or mock
sermon" in imitation or mimicking of religious services.
Thus, profanity and obscenity were related offenses. In
light of this history, it is apparent that the unconditional
phrasing of the First Amendment was not intended to
protect every utterance. This phrasing did not prevent
this Court from concluding that libelous utterances are
not within the area of constitutionally protected speech.
Beauharnais v. Illinois
All ideas having even the slightest redeeming social
importance - unorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinion - have
the full protection of the guaranties, unless excludable
because they encroach upon the limited area of more
important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly
without redeeming social importance.
re: petitioner's contention on the presence of "clear &
present danger of antisocial conduct"
"Libelous utterances not being within the area of
constitutionally protected speech, it is unnecessary,
either for us or for the State courts, to consider the
issues behind the phrase `clear and present danger.'
Certainly no one would contend that obscene speech, for
example, may be punished only upon a showing of such
circumstances. Libel, as we have seen, is in the same
class.
Freedom of discussion, if it would fulfill its historic
function in this nation, must embrace all issues about
which information is needed or appropriate to enable the
members of society to cope with the exigencies of their
period
therefore vital that the standards for judging obscenity
safeguard the protection of freedom of speech and press
for material which does not treat sex in a manner
appealing to prurient interest
Standard:
1.Regina v Hicklin: effect of a single excerpt of the
supposedly "obscene" material upon particularly
susceptibel persons- rejected
2. whether to the average person, applying contemporary
community standards, the dominant theme of the
material taken as a whole appeals to prurient interest-
proper standard.
re: lack of reasonable ascertainable standards of guilt
whic violates due process; words are not sufficiently
precise because they do not mean the same thing to all
people, all the time, everywhere- lack of precision is not
itself offensive to the requirements of due process. the
Constitution does not require impossible standards; all
that is required is that the language "conveys sufficiently
definite warning as to the proscribed conduct when
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measured by common understanding and practices"
United States v. Petrillo
3. the second issues in both Roth & Alberts fail because
of the holding initially stated.
Judgment affirmed.
MILLER vs. CALIFORNIA
Burger, CJ 5-4 vote
FACTS:
Miller was convicted of mailing unsolicited sexually
explicit material (titles were: “Intercourse”, “Man-
Woman”, “Sex Orgies Illustrated”, “Illustrated History of
Pornography”, “Marital Intercourse”) in violation of a
California statute (punishes distribution of obscene
materials, solicited or not) that approximately used the
obscenity test formulated in Memoirs v. Mass. The trial
court instructed the jury to evaluate the materials by the
contemporary community standard of California.
Appellant’s conviction was affirmed on appeal.
ISSUES/HELD:
1. WON obscene material is protected by 1st
Amendment.  NO. see Roth vs. Us.
2. WON obscene material can be regulated by the
States.  YES, subject to safeguards
enumerated in this case (the New Obscenity
Test).
3. WON the use of contemporary community
standards, instead of a national standard, is
constitutional.  YES. Standards of decency
differ. (ex. NY-Mississippi, UP-Miriam)
STUFF FROM THE CASE:
Landmark Obscenity Cases:
Roth vs. US, 1957
• obscenity is not within the area of
constitutionally protected speech
• presumption that porn is utterly without
redeeming social value
Memoirs vs. Mass, 1966
• Obscenity Test:
a) dominant theme appeals to prurient interest
in sex
b) patently offensive because it affronts
contemporary community standards relating
to the description or representation of sexual
matters
c) utterly without redeeming social value.
• ‘Utterly without redeeming social value’ MUST
BE PROVED by prosecution. (almost impossible)
The Present Case:
13
consti part 8: freedom of expression –unprotected speech
It is settled that obscene material is not protected by the
1st Amendment. A work may be subject to state
regulation where that work, taken as a whole, falls
within the realm of obscenity.
In lieu of the obscenity test in Memoirs, the Court used a
NEW Obscenity Test:
a) WON ‘the average person applying contemporary
community standards’ would find that the work
appeals to the prurient interest.
b) WON the work depicts or describes, in a patently
offensive way, sexual conduct specifically
defined by the applicable state law
c) WON the work lacks serious literary, artistic,
political, or scientific value.
The test of ‘utterly without redeeming social value’
articulated in Memoirs is rejected as a constitutional
standard.
In cases like this one, reliance must be placed in the jury
system, accompanied the safeguards that judges, rules
of evidence, presumption of innocence, etc.. provide.
The mere fact that juries may reach different conclusions
as to obscenity of the same material does not mean that
constitutional rights are abridged. The jury may
measure the essentially factual issues of prurient appeal
and patent offensiveness by the standard that prevails in
the community, and need not employ a national
standard.
Obscene (as defined by California Penal Code) – to the
average person, applying contemporary standards, the
predominant appeal of the material, taken as a whole, is
to prurient interest, i.e. a shameful or morbid interest in
nudity, sex, or excretion, which goes beyond the limits of
candor in description or representation of such matters
and is matter which is utterly without redeeming social
importance.
Prurient (adj.) – characterized by or arousing an interest
in sexual matters.
GONZALEZ vs. KALAW KATIGBAK
Ponente: Chief Justice Fernando
Petitioner: Jose Antonio U. Gonzalez, President of the
Malaya Films
Respondent: Board of Review of Motion Pictures and
Television (BRMPT), with Maria Kalaw Katigbak as
Chairman
FACTS:
October 23, 1984 – Permit to exhibit film “Kapit sa
Patalim under the classification “For Adults Only,” with
certain changes and deletions was granted by the
BRMPT.
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October 29, 1984 – the BRMPT, after a motion for
reconsideration from the petitioners, affirmed their
original ruling, directing the Chairman of the Board to
withhold the permit until the enumerated deficiencies
were removed.
January 12, 1985 – Court required respondent to
answer petitioner’s motion. The BRMPT alleges that the
petition is moot since it had already granted the
company the permit to exhibit without any deletions or
cuts while maintaining the original “For Adults Only”
classification. The validity of such classification was not
raised by the petitioners.
January 25, 1985 – Petitioners amended the petition,
including in the main objection the legal and factual
basis of the classification and its impermissible
restraint upon artistic expression.
-The BRMPT argued that the standard provided by law
in classifying films allows for a “practical and
determinative” yardstick for the exercise of judgment and
that the sufficiency of the standards should be the only
question in the case.
- The Supreme Court rejects such limitation of the scope
of the case, pointing that the justification of the standard
to warrant such a classification is still in question since
its basis, obscenity, is the yardstick used by the courts
in determining the validity of any invasion of the freedom
of artistic and literary expression.
ISSUE:
WON there was a grave abuse of discretion by the
respondent Board in violating the right of the petitioners
to artistic and literary expression.
HELD: There exists an abuse of discretion, but
inadequate votes to qualify it as grave.
RATIO:
1. Motion pictures are important as medium of
communication of Ideas and the expression of
the artistic impulse. This impresses upon
motion pictures as having both informative and
entertainment value. However, there is no clear
dividing line with what involves knowledge and
what involves entertainment. Providing a strict
delineation between the both aspects of motion
pictures would lead to a diminution of the
freedom of expression. In Reyes v. Bagatsing,
press freedom is the liberty to discuss publicly
and truthfully any matter of public concern
without censorship. Its limitation comes only
upon proof of a clear and present danger of a
substantive evil that the state has a right to
prevent.
2. The SC affirms the well-settled principle of
freedom of expression established by both U.S. v
Sedano, in the press, and Morfe vs. Mutuc, in
considering the ban on jingles in mobile units
for election purposes as an abridgement of this
freedom, amounting to censorship. At the same
time, it limits the power of the BRMPT to
14
consti part 8: freedom of expression –unprotected speech
classification of films. The court affirms its
power to determine what constitutes general
patronage, parental guidance or what is “For
Adults Only,” following the principle that
freedom of expression is the rule and restrictions
the exemption.
3. Test of Clear and Present Danger:
a. There should be no doubt that what is
feared may be traced to the expression
complained of. The casual connection
must be evident
b. There must be reasonable apprehension
about its imminence. There is the
requirement of its being well-nigh
inevitable.
Postulate: Censorship is only allowable
under the clearest proof of a clear and
present danger of a substantive evil to
public morals, public health, or any
legitimate public interest.
4. Roth v. U.S.: This case gives a preliminary
definition of obscenity and establishes the
courts’ adverse attitude towards it. According to
Brennan: “All ideas having the slightest social
importance have the full protection of the
guarantees unless it encroaches upon 1st
amendment rights. Obscenity is thus rejected as
utterly without redeeming social importance.
5. Hicklin Test: The early leading standard of
obscenity allowed material to be judged merely
by the effect of an isolated excerpt upon
particularly susceptible persons. The problem is
that such a standard might involve legitimate
material and so violate the freedom of speech
and press.
Later Tests: This early standard was modified
with the standard of whether or not to the
average person, applying contemporary
community standards, the dominant theme of
the material as a whole appeals to prurient
interest.
6. Sex and obscenity are not synonymous. Obscene
material is material appealing to prurient
interest.
7. Executive Order No. 876: “applying
contemporary Filipino values as standard.” Vs.
the Constitutional mandate of arts and letters
being under the patronage of the state.
- There is no orthodoxy in what
passes for beauty or reality. It
is for the artist to determine
what for him is a true
representation.
8. Yu Chon Eng v. Trinidad: It is an elementary,
fundamental and universal rule of construction
that when law is susceptible of two
constructions one of which will maintain and the
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other destroy it, the courts will adopt the former.
Thus there can be no valid objection to the
sufficiency of the controlling standard and its
conformity to what the constitution ordains.
9. There is an abuse of discretion by the board due
to the difficulty an travail undergone by the
petitioners before Kapit sa Patalim was classified
for adults only without deletion. Its perception of
obscenity appears to be unduly restrictive.
However, such abuse cannot be considered
grave due to lack of votes. The adult
classification is simply a stern warning that the
material viewed is not fit for the youth since they
are both vulnerable and imitative. Nonetheless,
the petitioners were given an option to be re-
classified to For-general-Patronage with
deletions and cuts. The court however stresses
that such a liberal view might need a more
restrictive application when it comes to
televisions.
PITA vs. CA
Sarmiento, j.:
FACTS
On December I and 3,1983, Manila Mayor, Ramon D.
Bagatsing, initiated an Anti-Smut Campaign which
seized and confiscated from dealers, distributors,
newsstand owners and peddlers magazines, publications
and other reading materials believed to be obscene,
pornographic and indecent. Among the publications
seized, and later burned, was "Pinoy 'Playboy"
magazines published and co-edited by plaintiff Leo
Pita.
On December 7, 1983, plaintiff filed a case for injunction
with prayer for issuance of the writ of preliminary
injunction against Mayor Bagatsing and Narcisco
Cabrera, as superintendent of Western Police District of
the City of Manila, seeking to enjoin and/or restrain
said defendants and their agents from confiscating
plaintiff's magazines or from otherwise preventing
the sale or circulation claiming that the magazine is
a decent, artistic and educational magazine which is
not obscene, and that the publication is protected by
the Constitutional guarantees of freedom of speech
and of the press.
On December 12, 1983, plaintiff filed an Urgent Motion
for issuance of a temporary restraining order. against
indiscriminate seizure, confiscation and burning of
plaintiffs "Pinoy Playboy" Magazines, pending hearing on
the petition for preliminary injunction in view of Mayor
Bagatsing's pronouncement to continue the Anti-Smut
Campaign. The Court granted the temporary
restraining order.
15
consti part 8: freedom of expression –unprotected speech
In his Answer and Opposition filed on December 27,
1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading
materials but claimed that the said materials were
voluntarilv surrendered by the vendors to the police
authorities, and that the said confiscation and seizure
was undertaken pursuant to P.D. No. 960, as amended
by P.D. No. 969, which amended Article 201 of the
Revised Penal Code.
On January 5, 1984, plaintiff filed his Memorandum in
support of the issuance of the writ of preliminary
injunction, raising the issue as to "whether or not the
defendants and/or their agents can without a court
order confiscate or seize plaintiff's magazine before any
judicial finding is made on whether said magazine is
obscene or not".
The restraining order having lapsed, the plaintiff filed an
urgent motion for issuance of another restraining order,
which was opposed by defendant on the ground that
issuance of a second restraining order would violate the
Resolution of the Supreme Court dated January 11,
1983, providing for the Interim Rules Relative to the
Implementation of Batas Pambansa Blg. 129, which
provides that a temporary restraining order shall be
effective only for twenty days from date of its issuance.
On February 3, 1984, the trial court promulgated the
Order appealed from denying the motion for a writ of
preliminary injunction, and dismissing the case for lack
of merit. The Appellate Court dismissed the appeal.
ISSUES
WON.the Court of Appeals erred in affirming the decision
of the trial court and, in effect, holding that the police
officers could without any court warrant or order seize
and confiscate petitioner's magazines on the basis
simply of their determination that they are obscene.
HOLDING
Yes. Petition granted. CA ruling reversed and set aside
(Note: the dispository portion of this case is quite
complicated due to the concept of seizures and searches.
This is the ruling in terms of whether obscenity is
protected by the freedom of speech but you may check
the actual case for your own peace of mind)
RATIO
Tests of Obscenity
In People vs. Kottinger, the Court laid down the test, in
determining the existence of obscenity, as follows:
"whether the tendency of the matter charged as obscene,
is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a
publication or other article charged as being obscene
may fall." "Another test," so Kottinger further declares,
"is that which shocks the ordinary and common sense of
men as an indecency." Kottinger hastened to say,
however, that "[w]hether a picture is obscene or indecent
must depend upon the circumstances of the case," and
that ultimately, the question is to be decided by the
"judgment of the aggregate sense of the community
reached by it."
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As the Court declared, the issue is a complicated one, in
which the fine lines have neither been drawn nor
divided. It was People v. Padan y Alova, that introduced
to Philippine jurisprudence the "redeeming" element that
should accompany the work, to save it from a valid
prosecution. We quote:
We have had occasion to consider offenses like the
exhibition of still or moving pictures of women in the nude,
which we have condemned for obscenity and as offensive
to morals. In those cases, one might yet claim that there
was involved the element of art; that connoisseurs of the
same, and painters and sculptors might find inspiration in
the showing of pictures in the nude, or the human body
exhibited in sheer nakedness, as models in tableaux
vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art.
Padan y Alova, like Go Pin, however, raised more
questions than answers. For one thing, if the exhibition
was attended by "artists and persons interested in art
and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes,"could the same
legitimately lay claim to "art"? For another, suppose that
the exhibition was so presented that "connoisseurs of
[art], and painters and sculptors might find inspiration,"
in it, would it cease to be a case of obscenity?
In a much later decision, Gonzalez v. Kalaw Katigbak,
the Court, following trends in the United States, adopted
the test: "Whether to the average person, applying
contemporary standards, the dominant theme of the
material taken as a whole appeals to prurient interest."
Kalaw Katigbak represented a marked departure from
Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than
isolated passages, which were central to Kottinger
(although both cases are agreed that "contemporary
community standards" are the final arbiters of what is
"obscene").
Memoirs v. Massachusettes, a 1966 decision, which
characterized obscenity as one "utterly without any
redeeming social value,"21 marked yet another
development.
The latest word, however, is Miller v. California,
which expressly abandoned Massachusettes, and
established "basic guidelines, to wit: "(a) whether 'the
average person, applying contemporary standards'
would find the work, taken as a whole, appeals to the
prurient interest ... ; (b) whether the work depicts or
describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific
value."
DISCUSSION OF THE CASE
In the case at bar, there is no challenge on the right
of the State, in the legitimate exercise of police
16
consti part 8: freedom of expression –unprotected speech
power, to suppress smut-provided it is smut. For
obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wideranging
influences, and keep in step with the rapid advance of
civilization.
Undoubtedly, "immoral" lore or literature comes
within the ambit of free expression, although not its
protection. In free expression cases, this Court has
consistently been on the side of the exercise of the
right, barring a "clear and present danger" that would
warrant State interference and action. But, so we
asserted in Reyes v. Bagatsing, "the burden to show
the existence of grave and imminent danger that
would justify adverse action. . . lies on the ...
authorit[iesl."
"There must be objective and convincing, not
subjective or conjectural, proof of the existence of
such clear and present danger." "It is essential for
the validity of ... previous restraint or censorship
that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety
may require." "To justify such a limitation, there
must be proof of such weight and sufficiency to
satisfy the clear and present danger test."
As we so strongly stressed in Bagatsing, a case
involving the delivery of a political speech, the
presumption is that the speech may validly be said.
The burden is on the State to demonstrate the
existence of a danger, a danger that must not only
be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present danger),
it must come to terms with, and be held accountable
for, due process.
The Court is not convinced that the private
respondents have shown the required proof to justify
a ban and to warrant confiscation of the literature
for which mandatory injunction had been sought
below. First of all, they were not possessed of a
lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a
search and seizure, by way of a search warrant.
The fact that the former respondent Mayor's act was
sanctioned by "police power" is no license to seize
property in disregard of due process. Presidential
Decrees Nos. 960 and 969 are, police power measures,
but they are not, by themselves, authorities for high-
handed acts. (The Decrees provides procedures for
implementation)
It is basic that searhes and seizures may be done
only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In
Burgos v. Chief of Staff, AFP,43 We countermanded
the orders of the Regional Trial Court authorizing
the search of the premises of We Forum and
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Metropolitan Mail, two Metro Manila dailies, by
reason of a defective warrant. We have greater reason
here to reprobate the questioned rand, in the
complete absence of a warrant, valid or invalid. The
fact that the instant case involves an obscenity rap
makes it no different from Burgos, a political case,
because, and as we have indicated, speech is speech,
whether political or "obscene"
We reject outright the argument that "[t]here is no
constitutional nor legal provision which would free
the accused of all criminal responsibility because
there had been no warrant," and that "violation of
penal law [must] be punished." For starters, there is
no "accused" here to speak of, who ought to be
"punished". Second, to say that the respondent
Mayor could have validly ordered the raid (as a result
of an anti-smut campaign) without a lawful search
warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the
respondent Mayor judge, jury, and executioner rolled
into one. And precisely, this is the very complaint of
the petitioner.
DEFAMATION & DISCRIMINATION by: MACKINNON
Pornography is a constitutionally protected speech. Ours
is a society saturated by pornography. 36% of women
were molested as girls, 24% suffers from marital rape,
50% from rape or attempted rape, 85% are sexually
harassed by employers in one way or another.
A long time before the women’s movement, legal
regulation of pornography was framed as a question of
the freedom of expression of the pornographers and their
consumers—government’s interest in censoring
expressions of sex vs the publisher’s right to express
them and the consumer’s right to read and think about
them.
In this new context, protecting pornography means
protecting sexual abuse as speech and its protection
have deprived women of speech against sexual abuse.
In the US, pornography is protected. Sexual abuse
becomes a consumer choice of expressive content,
abused women become a pornographer’s “thought” or
“emotion”.
Pornography falls into the legal category of “speech”
rendered in terms of “content”, “message”, “emotion”,
what it “says”, its “viewpoint”, its “ideas”
Pornography is essentially treated as defamation rather
than as discrimination, conceived in terms of what it
says; a form of communication cannot, as such, do
anything bad except offend. The trade or the sending
and receiving is protected by the 1st amendment, the
defamatory or offending element is a cost of freedom.
17
consti part 8: freedom of expression –unprotected speech
A theory of protected speech begins here: words express,
hence are presumed “speech” in the protected sense. But
social life is full of words that are legally treated as the
acts they constitute without so much as a whimper from
the first amendment. For example: saying “kill” to a
trained attack dog, saying “ready, aim, fire” to a firing
squad. Words like “not guilty and “I do”. A sign saying
“white only”. These are considered as “only words”; doing
not saying, not legally seen as expressing viewpoint.
In pornography, it is unnecessary to do any of these
things to express, as ideas, the ideas pornography
expresses. It is essential to do them to make
pornography. Pornography, not its ideas, gives men
erections. Erection is neither a thought nor a feeling but
a behavior.
Speech conveys more than its literal meaning, and its
nuances and undertones must be protected but what the
1st amendment in effect protects is the unconscious
mental intrusion and physical manipulation, even by
pictures and words, particularly when the results are
further acted out through aggression and other
discrimination.
Porn=sex
Sex= not thinking
(from the text: try arguing with an orgasm sometime)
Pornography is protected as a constitutional right. Its
effects depend upon “mental intermediation”. It is
protected unless you can show what it and it alone does.
Empirically, all pornography is made under conditions of
inequality based on sex, overwhelmingly by poor,
desperate, homeless, pimped women who were sexually
abused as children.
Pornography contains ideas like any other social
practice. But the way it works is not as a thought or in
the way thoughts and ideas are protected as speech. The
message is “get her” pointing at all women addressed
directly to the penis, delivered through an erection, and
taken out on women in the real world. What is more
protected, his sensation or her life?
Author’s proposal: law against pornography that defines
it as graphic sexually explicit materials that subordinate
women through pictures or words. This definition
includes porn as defamation or hate speech, its role as
subordination, as sex discrimination, including what it
does through what it says. Such material with activities
like hurting, degrading, violating, and humiliating, that
is, actively subordinating, treating unequally, as less
than human, on the basis of sex.
The idea that pornography conveys: male authority in a
naturalized gender hierarchy, male possession of an
objectified other. Porn provides a physical reality i.e.
erections and ejaculations. None of this starts or stops
as a thought or feeling. Beyond bringing a message from
reality, it stands in for reality. What was words and
pictures becomes, through masturbation, sex itself. In
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pornography, pictures and words are sex. As sex
becomes speech, speech becomes sex.
Denials and justifications include:
1. porn reflects or depicts subordination that
happens elsewhere
2. porn is a fantasy, unreal, an internal reality
3. simulated
4. it’s a representation
In constructing pornography as speech is gaining
constitutional protection for doing what pornography
does: subordinating women through sex. Law’s proper
concern here is not with what speech says, but what it
does.
The doctrinal distinction between speech and action is
on one level obvious, on another level it makes little
sense. In social inequality, it makes almost none.
Discrimination does not divide into acts on one side and
speech on the other. (speech acts)
Words and images are how people are placed in
hierarchies. Social supremacy is made, inside and
between people, through making meanings. .
Example of “just words”—expressions that are not
regulated:
1. Ku Klux Klan
2. segregating transportation bet blacks and whites
3. ads for segregated housing
Should their racist content protect them as political
speech since they do their harm through conveying a
political ideology?
Supreme Court referred to porn as “pure speech’ thus
converting real harm to the idea of harm, discrimination
into defamation (meaning they contain defamatory ideas,
they are protected , even as they discriminate against
women)
1st amendment protects ideas regardless of the mischief
they do in the world. This was construed to apply
favorably to communist cases but in effect, it protects
pornography. However there are substantial differences
which must be noted:
1. pornography has to be done to women to be
made, no government has to be overthrown to
make a communist speech
2. pornography is more than mere words, words of
communism are only words
Porn is more comparable to law-- utterance of legal
words as tantamount to imposing their reality.
Government speech backed by power are seen as acts.
So is pornography: the power of men over women
expressed through unequal sex. It makes no more sense
to treat pornography as mere abstraction and
representation than it does to treat law as simulation or
fantasy.
Porn is law for women. It does what it says.
18
consti part 8: freedom of expression –unprotected speech
RENO vs. ACLU
[June 26, 1997]
Justice Stevens delivered the opinion of the Court.
FACTS:
Two provisions of the Communications Decency Act of
1996 (CDA or Act) seek to protect minors from harmful
material on the Internet, an international network of
interconnected computers that enables millions of people
to communicate with one another in "cyberspace" and to
access vast amounts of information from around the
world. Criminalizes the "knowing" transmission of
"obscene or indecent" messages to any recipient
under 18 years of age. Section 223(d) prohibits the
"knowin[g]" sending or displaying to a person under
18 of any message "that, in context, depicts or
describes, in terms patently offensive as measured
by contemporary community standards, sexual or
excretory activities or organs." Affirmative defenses
are provided for those who take "good faith, . . . effective
. . . actions" to restrict access by minors to the
prohibited communications, and those who restrict such
access by requiring certain designated forms of age
proof, such as a verified credit card or an adult
identification number.
The court's judgment enjoins the Government from
enforcing prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the
Government's right to investigate and prosecute the
obscenity or child pornography activities prohibited
therein. The injunction against enforcement of CDA is
unqualified because that section contains no separate
reference to obscenity or child pornography. The
Government appealed to this Court under the Act's
special review provisions, arguing that the District Court
erred in holding that the CDA violated both the First
Amendment because it is overbroad and the Fifth
Amendment because it is vague.
ISSUE:
1. WON CDA is a valid prohibition? Nope…
2. WON the CDA act 1996 violates the First and
Second amendments by its definition of “obscene” and
“patently offensive” prohibitions on internet information.
YES…… vague and overbroad.
RATIO:
• The CDA differs from the various laws and
orders upheld in those cases in many ways,
including that it does not allow parents to
consent to their children's use of restricted
materials; is not limited to commercial
transactions; fails to provide any definition of
"indecent" and omits any requirement that
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"patently offensive" material lack socially
redeeming value; neither limits its broad
categorical prohibitions to particular times nor
bases them on an evaluation by an agency
familiar with the medium's unique
characteristics; is punitive; applies to a medium
that, unlike radio, receives full First Amendment
protection; and cannot be properly analyzed as a
form of time, place, and manner regulation
because it is a content-based blanket restriction
on speech.
• The special factors recognized in some of the
Court's cases as justifying regulation of the
broadcast media—the history of extensive
government regulation of broadcasting, the
scarcity of available frequencies at its inception,
and its "invasive" nature,—are not present in
cyberspace.
• Regardless of whether the CDA is so vague that
it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage
render it problematic for First Amendment
purposes. For instance, its use of the undefined
terms "indecent" and "patently offensive" will
provoke uncertainty among speakers about how
the two standards relate to each other and just
what they mean.
• The CDA lacks the precision that the First
Amendment requires when a statute regulates
the content of speech. Although the
Government has an interest in protecting
children from potentially harmful materials
the CDA pursues that interest by suppressing
a large amount of speech that adults have a
constitutional right to send and receive. Its
breadth is wholly unprecedented. The CDA's
burden on adult speech is unacceptable if less
restrictive alternatives would be at least as
effective in achieving the Act's legitimate
purposes.
• The contention that the Act is constitutional
because it leaves open ample "alternative
channels" of communication is unpersuasive
because the CDA regulates speech on the basis
of its content, so that a "time, place, and
manner" analysis is inapplicable.
• The assertion that the CDA's "knowledge" and
"specific person" requirements significantly
restrict its permissible application to
communications to persons the sender knows to
be under 18 is untenable, given that most
Internet forums are open to all comers and that
even the strongest reading of the "specific
person" requirement would confer broad powers
of censorship, in the form of a "heckler's veto,"
upon any opponent of indecent speech.
PERSONAL OPINION:
Computer technology evolves over time,
every 9 months if I’m not mistaken, rather than
spend money on litigation or a better construction of
a Prohibitive internet law why not spend it on
Research and Development to come up with a
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consti part 8: freedom of expression –unprotected speech
screening technology that allows computers to
recognize if it is a minor using the computer and
automatically blocks off all “offensive” sites? Of
course by that time a better definition of “obscene”
or “patently offensive” should have been
constructed?
ASHCROFT vs. ACLU
May 13, 2002
The case presents the “narrow question”
whether the Child Online Protection Act’s (COPA) use of
“community standards” to identify “material that is
harmful to minors” violates the First Amendment. We
hold that this aspect of COPA does not render the
statute facially unconstitutional.
BACKGROUND [Please Note]:
1. The Internet offers a forum for a true diversity of
political discourse, cultural development and
intellectual activity. By “surfing”, the primary
method of remote information retrieval on the
internet, individuals can access various materials in
the World Wide Web which also contains a wide
array of sexually explicit material, including
hardcore pornography. In 1998, there were about
28,000 adult sites promoting pornography on the
Web. Children discover pornographic material by
deliberate access or by stumbling upon them.
2. Communications Decency Act of 1996 (CDA) (As
contrasted to COPA). Congress first attempted to
protect children from exposure to pornographic
material on the Internet through the CDA. CDA
prohibited the knowing transmission over the
internet of obscene or indecent messages to any
recipient under 18 years of age. The prohibition
covers “any comment, request, suggestion, proposal,
image, or other communication that, in context,
depicted or described, in terms patently offensive as
measured by contemporary community standards,
sexual or excretory activities or organs.”
- CDA had “two affirmative defenses”:
(1) It protected individuals who took “good faith,
reasonable, effective, and appropriate actions” to
restrict minors from accessing obscene, indecent,
and patently offensive material over the Internet;
and
(2) Individuals who restricted minors from accessing
such material “by requiring a verified credit card,
debit account, adult access code, or adult personal
identification number."
- Court concluded in Reno v. ACLU that the CDA
lacked the precision that the First Amendment
requires when a statute regulates the content of
speech because in order to deny minors access to
potentially harmful speech, the CDA effectively
suppressed a large amount of speech that adults
had a constitutional right to receive and to address
to one another.
- Holding CDA unconstitutional was based on “three
crucial considerations”:
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(1) Existing technology did not include any effective
method for a sender to prevent minors from
accessing the communications in the Internet
without also denying access to adults.
(2) Its “open-ended prohibition” embraced
commercial speech and all “nonprofit entities and
individuals” posting indecent messages or displaying
them on their own computers in the presence of
minors. “Indecent” and “patently offensive” were not
defined.
(3) The two affirmative defenses offered did not
“narrowly tailor” the coverage of the Act. Only the
ban on the “knowing transmission of obscene
message survived because “obscene speech” enjoys
no First Amendment protection.
3. Child Online Protection Act. It prohibited any
person from “knowingly and with knowledge of the
character of the material, in interstate or foreign
commerce by means of the World Wide Web, making any
communication for commercial purposes that is
available to any minor and that includes any material
that is harmful to minors.”
- Congress limited the scope of COPA’s coverage in three
ways:
(1) It applies only to material displayed on the World
Wide Web as contrasted to CDA which applied to all
communications over the Internet including e-mail
messages.
(2) It covers only communications made “for commercial
purposes.”
(3) COPA restricts only the narrower category of
“material that is harmful to minors.”
- COPA uses the “three part test for obscenity” set in
Miller v. California to define “material that is harmful to
minors” as “any communication, picture, image, graphic
image file, article, recording, writing, or other matter of
any kind that is obscene or that –
(1) the average person, applying contemporary
community standards, would find, taking the material as
a whole and with respect to minors, is designed to
appeal to, or is designed to pander to, the prurient
interest;
(2) depicts, describes, or represents, in a manner
patently offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or lewd
exhibition of the genitals or post-pubescent female
breasts; and
(3) taken as a whole, lacks serious literary, artistic,
political, or scientific value for minors.
- COPA also provides “affirmative defenses”: An
individual may have a defense if he in “good faith, has
restricted access by minors to material that is harmful to
minors –
(1) By requiring the use of a credit card, debt account,
adult access code, or adult personal identification
number;
(2) By accepting a digital certificate that verifies age; or
(3) By any other reasonable measures that are feasible
under available technology.
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consti part 8: freedom of expression –unprotected speech
- Violators have a civil penalty of up to $50,000 for each
violation or a criminal penalty of up to six month
imprisonment or a maximum fine of $50,000.
FACTS:
One month before the COPA was scheduled to go
into effect, the respondents filled a lawsuit challenging
the constitutionality (“facial challenge”) of the statute in
the United States District Court for the Eastern District
of Pennsylvania. Respondents are a diverse group of
organizations, most of which maintain their own Web
sites. Respondents all derive income from their sites. All
of them either post or have members that post sexually
oriented material on the Web. They believe that their
material on their Web sites was valuable for adults but
they fear that they will be prosecuted under the COPA
because some of the material could be construed as
“harmful to minors” in some communities. Their “facial
challenge” claimed that the COPA violated adults’ rights
under the First and Fifth Amendments because COPA:
(1) It created an effective ban on the constitutionally
protected speech by and to adults.
(2) It was not the least restrictive means of
accomplishing any compelling governmental
purpose.
(3) It was substantially overbroad.
The District Court granted respondent’s motion for a
preliminary injunction barring the Government from
enforcing the Act until the merits of respondent claims
could be adjudicated. The District Court reasoned that
the statute is “presumptively invalid” and “subject to
“strict scrutiny” because COPA constitutes content-
based regulation of sexual expression protected by the
First Amendment. Court of Appeals for the Third Circuit
affirmed. CA concluded that COPA’s use of
“contemporary community standards” to identify
material that is harmful to minors rendered that statute
substantially overbroad. CA concluded that COPA would
require any material that might be deemed harmful by
the “most puritan of communities” in any state since
Web publishers are without any means to limit access to
their sites based on geographical location of particular
Internet users.
Issues:
1. WON COPA violates the First Amendment
because it relies on “community standards” to
identify material that is “harmful to minors.” –
NO.
- The Court upheld the use of “community
standards” in Roth v. United States which was later
adopted by Miller v. California. Miller set the
governing “three-part test for obscenity” (discussed
earlier) for assessing whether material is obscene
and thus unprotected by the First Amendment. Roth
earlier reputed the earlier approach of “sensitive
person standard” (what is obscene is dictated by
well-known individuals) by English courts and some
American courts in the 19th century. In lieu of the
“sensitive person standards”, which was held to be
unconstitutionally restrictive of the freedoms of
speech and press, the Court approved the
“community standard” requiring that material be
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judged from the perspective of “the average person,
applying contemporary community standards.”
2. WON the Court’s prior jurisprudence on
“community standards” is applicable to the
Internet and the Web [considering that Web
publishers right now do not have the ability to
control the geographic scope of the recipients of
their communications]. – YES.
- “Community standards” need not be defined by
reference to a precise geographic area. In Jenkins v.
Georgia, the Court said that “[a] State may choose to
define an obscenity offense in terms of
‘contemporary community standards’ as defined in
Miller without further specification … or it may
choose to define the standards in more precise
geographic terms…”
- Remarkably, the value of a work as judged using
community standards does not vary from
community to community based on the “degree of
local acceptance” it has won.
- When the scope of an obscenity statute’s coverage
is sufficiently narrowed by a “serious vale prong”
and a “prurient interest prong” (refer to the Miller
three-part test for obscenity), we have held that
requiring a speaker disseminating material to a
national audience to observe varying community
standards does not violate the First Amendment. We
noted that the community standards’ criterion “as
applied” to the Internet means that any
communication available to a nationwide audience
will be judged by the standards of the community
most likely to be offended by the message. COPA
applies to significantly less material that did the
CDA and defines the “harmful-to-minors” material
restricted by the statue in a manner parallel to the
Miller definition of obscenity.
- In fact, in Hamling v. United States, which used
the “prurient interest” and the “redeeming social
value” requirements, and Sable Communications of
Cal. Inc. v. FCC, which used these requirements on
the “dial-a-porn” case, the ability to limit the
distribution of material into particular geographic
areas is not a crucial prerequisite. Even if these two
cases refer to published books and to telephone
calls, we do not believe that the Internet’s “unique
characteristics” justify adopting a different
approach.
3. WON the COPA is “unconstitutionally overbroad”
because it will require Web publishers to “shield”
some materials behind age verification screens
that could be displayed openly in many
communities. – NO.
- To prevail in a “facial challenge”, it is not enough
for a plaintiff to show some overbreadth; but rather
the overbreadth must not only be “real” but
“substantial” as well. Respondents failed to prove it.
Congress has already narrowed the range of content
of COPA.
HOLDING:
The scope of the decision is “quite limited.” COPA’s
reliance on community standards to identify “material
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consti part 8: freedom of expression –unprotected speech
that is harmful to minors” does not by itself [I think the
Court is saying that it could be unconstitutional “as
applied” as expressed by Justice O’Connor in his
concurring opinion] render the statute substantially
overbroad.
- The Court did not decide whether the COPA is
unconstitutionally vague for other purposes or that the
Act will not survive if strict scrutiny is applied.
- Since petitioner did not ask to vacate the preliminary
injunction, the Government remains enjoined from
enforcing COPA without the further action by the Court
of Appeals of the District Court.
Justice O’Connor, concurring in part and concurring
in the judgment.
I agree that even if obscenity on the Internet is
defined in terms of local community standards,
respondent have not shown that the COPS is overbroad
solely on the basis of the variation in the standards of
different communities. But the respondents’ failure still
leaves possibility that the Act could be unconstitutional
“as applied.” To avoid this, a national standard is
necessary for a reasonable regulation of Internet
obscenity. O’Connor does not share the “skepticism” in
Miller in having a national standard. He believe that
although the Nation is diverse, many local communities
encompass a similar diversity.
Justice Breyer, concurring in part and concurring in
the judgment.
Breyer thinks that the statutory word
“community” in the Act refers to the “Nation’s adult
community taken as a whole, not to geographically
separate local areas.” The statutory language does not
explicitly describe the specific “community” to which it
refers. It only pertains to the “average person, applying
contemporary community standards.”
Justice Kennedy, with who Justice Souter and
Justice Ginsburg join, concurring in the judgment.
There is a very real likelihood that the COPA is
overbroad and cannot survive a facial challenge because
content-based regulation like this one are presumptively
invalid abridgements of the freedom of speech. Thus,
even if this facial challenge has considerable merit, the
Judiciary must proceed with caution and identify
overbreadth with care before invalidating the Act.
We cannot know whether variation in
community standards renders the Act substantially
overbroad without first assessing the extent of the
speech covered and the variations in community
standards with respect to that speech. Two things must
be noted in this respect:
(1) The breadth of the Act itself will dictate the
degree of overbreadth caused by varying
community standards.
(2) Community standards may have different
degrees of variation depending on the question
posed to the community.
Kennedy then argues that any problem caused
by variation in community standards cannot be
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evaluated in a vacuum. To discern overbreadth, it is
necessary to know what speech COPA regulates and
what community standards it invokes. He also noted
that the decision did not address the issue of “venue”
where one surfs the Internet [He does not know the Net
that well.]
Justice Stevens, dissenting.
In the context of the Internet, “community
standards become a sword rather that a shield.” If a a
prurient appeal is offensive in a puritan village, it may be
a crime to post it on the Web. Stevens reminded the
Court of Justice Frankfurter’s admonition not to “burn
the house to roast the pig.”
His arguments:
(1) The COPA restricts access by adults as well
as children to materials that are deemed
“harmful to minors” by the relative
“community standards’ criterion.”
(2) COPA restricts speech that is made available
to the general public. COPA covers a
“medium” [The World Wide Web] in which
speech cannot be segregated to avoid
communities where it is likely to be
considered harmful to others.
(3) COPA’s adoption of the Miller test for
obscenity do not cure its overbreadth.
Using community standards to differentiate
“permissible” and “impermissible” speech could either be
a “shield” to protect speakers from the least tolerant
members of society. Or it could act as a “sword”, to
especially in the context of cyberspace, to remove
obscene material from the offended community that
defined it as such, and deprive the same material to all
else who may think otherwise.
SOLIVEN vs. MAKASIAR
(November 14, 1988)
Per Curiam
FACTS:
Petition for Certiorari and Prohibition to review the decision
of the RTC
Then President of the Philippines (Aquino) filed
Informations for libel against the petitioners. Manila
RTC (Makasiar, J) issued a warrant of arrest for
petitioners.
ISSUE: WON the RTC erred in issuing the warrants of
arrest  NO
RATIO:
Ground 1: Petitioners were denied due process when the
Informations for libel were filed against them although
the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and by the
President.
Court: Moot and Academic. On March 30, 1988, the
Secretary of Justice denied petitioners’ motion for
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consti part 8: freedom of expression –unprotected speech
reconsideration and upheld the resolution of the USec of
Justice sustaining the City Fiscal’s finding of a prima
facie case against petitioners.
Ground 2: Beltran’s constitutional rights were violated
when respondent RTC judge issued a warrant for his
arrest without personally examining the complainant
and the witnesses to determine probable cause.
Court: (Please see Art 3, sec 2 of the Consti) In
satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his
witness. Following established doctrine and procedure,
he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding
the existence of probable cause and then issue a warrant
of arrest, or (2) if he finds no probable cause, he may
disregard the fiscal’s report and require the submission
of supporting affidavit of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause.
Ground 3: The President’s immunity from suits imposes
a correlative disability to file a suit. If criminal
proceedings ensue by virtue of the President’s filing of
her complaint-affidavit, she may subsequently have to be
a witness for the prosecution, bringing her under the
trial court’s jurisdiction. This would be in an indirect
way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing
herself to possible contempt of court or perjury. (Beltran)
May the privilege of immunity be waived?
There is nothing in our laws that would prevent the
President from waiving the privilege.
The privilege of immunity from suit pertains to the
President by virtue of the office and may be invoked only
by the holder of the office; not by any other person in the
President’s behalf. An accused in a criminal case in
which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case
from proceeding against such accused.
What is the rationale for the privilege of immunity from
suit?
The rationale for the grant to the President of the
privilege of immunity from suit is to assure the exercise
of Presidential duties and functions free from any
hindrance or distraction, considering that being the
Chief Executive of the Government is a job that demands
undivided attention.
Ground 4: Petitioner contends that he could not be held
liable for libel because of the privileged character of the
publication.
Court: The Court is not a trier of facts. Such a defense
is best left to the trial court to appreciate after receiving
the evidence of the parties.
Ground 5: Petitioner claims that to allow a libel case to
prosper would produce a “chilling effect” on press
freedom.
Court: There is no basis at this stage to rule on the
point.
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Gutierrez, concurring:
J. Gutierrez concurs with the majority as regards the
first 3 issues but reserves his vote with regard to the
“chilling effect” of the prosecution of the libel case on
press freedom.
Salonga v Cruz Paño: the Court should not hesitate to
quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not only
the criminal liability of an accused in a seemingly minor
libel case which is involved but broader considerations of
governmental power versus a preferred freedom.
I am fully in accord with an all out prosecution if the
effect will be limited to punishing a newspaperman who,
instead of observing accuracy and fairness, engages in
unwarranted personal attacks, irresponsible twisting of
facts, of malicious distortions of half-truths which tend
to cause dishonor, discredit, or contempt of
complainant. However, this case is not a simple
prosecution for libel. We have as complainant a
powerful and popular President who heads the
investigation an prosecution service and appoints
members of appellate courts but who feels so terribly
maligned that she has taken the unorthodox step of
going to court in spite of the invocations of freedom
of press which would inevitably follow. I believe the
Court should have acted on this issue now instead of
leaving the matter to fiscals and defense lawyers to
argue before a trial judge.
US v Bustos (to be discussed in Crim2): Complete liberty
to comment on the conduct of public men is a scalpel in
the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the
wound can be assuaged with the balm of clear
conscience.  While defamation is not authorized,
criticism is to be expected and should be borne for the
common good.
High official position, instead of affording immunity from
slanderous and libelous charges, would actually invite
attacks by those who desire to create sensation. What
would ordinarily be slander if directed at the typical
person should be examined from various perspectives if
directed at a high gov’t official. The SC should draw this
fine line instead of leaving it to lower tribunals.
Elizalde v Gutierrez: A prosecution for libel lacks
justification if the offending words find sanctuary within
the shelter of free press guaranty. It should not be
allowed to continue where, after discounting the
possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting
factor on the willingness of newspapermen, especially
editors and publishers to courageously perform their
critical role in society.
Ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative
words, which if taken literally may appear to shame or
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disparage a public figure, may really be intended to

provoke debate on public issues when uttered or written
by a media personality. Will not a criminal prosecution
in the type of case now before us dampen the vigor and
limit the variety of public debate?

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